S. M. SONI, J. ( 1 ) [his Lordships after stating the facts of the case, further observed :] ( 2 ) MR. M. D. Pandya, learned Advocate for the respondents has supported the judgment of the Tribunal. Mr. Pandya further contended that if this Court is going to enhance the amount of compensation, then under the provisions of Order 41, Rule 22 of the Civil Procedure Code, he has a right to support the judgment by challenging contentions which are decided against him by the learned Tribunal. By this submission, Mr. Pandya wants to raise a contention of contributory negligence. Mr. Pandya contended that the accident did not take place solely because of the negligence of the S. T. driver, but it was the scooterist who has contributed for the occurrence of the accident. Mr. Pandya contended that though the specific plea of contributory negligence is not raised before the Tribunal, the same is covered under the plea of no negligence on their part and negligence of the scooterist. Mr. Pandya, therefore, contended that the appeal should be dismissed with costs. ( 3 ) BEFORE we decide as to whether the appeal is required to be allowed on the question of enhancement of compensation, it will be necessary for us to dispose of the contentions raised by Mr. Pandya. Mr. Pandya contended before us that the Tribunal has not considered the question of negligence on the part of the scooterist. A question is raised as to how the respondents can raise such a question as to negligence or contribution by way of negligence in occurring of the accident by the scooterist when such a contention is not raised by them before the Tribunal or if covered by negligence alleged to be of scooterist, then when it is negatived by the trial Court. ( 4 ) ORDER 41, Rule 22 sub rule (1) of the Civil Procedure code provides that any respondent though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour. Under this provision, the respondent may take any cross-objection to the decree which he could have taken by way of appeal, provided such crossobjections are filed within the time provided in this Rule. Mr. Under this provision, the respondent may take any cross-objection to the decree which he could have taken by way of appeal, provided such crossobjections are filed within the time provided in this Rule. Mr. Pandya therefore, contended before us that though they have not filed crossobjections nor have they filed cross-appeal, the respondents are entitled to support the decree by challenging the issue on the point which ought to have been decided in their favour. In the instant case, as contended by learned Advocate Mr. Pandya that the defence of contributory negligence is included or is covered by the issue of negligence. If it is so, it can be said that the Court has not only decided the issue of negligence, but has also decided the issue of contributory negligence. Mr. Pandya contended that they are, therefore, entitled to support the decree by challenging the finding of the trial Court to the effect that the issue of contributory negligene is decided against them. We are not able to agree with the contention of Mr. Pandya firstly on the ground that if according to him, the issue of contributory negligence is covered under the issue of negligence, then in that case, the issue of negligence though decided against them is not challenged either by way of cross-objections or by way of cross-appeal. Therefore, it can equally be said that the issue of contributory negligence is also not challenged and, therefore, they are not entitled to raise the issue of contributory negligence by way of provisions under sub-rule (1) of Rule 22 of Order 41 of the Civil Procedure code. Assuming for the sake of argument that they are entitled to raise such an issue, then Mr. Bhatt, learned Advocate for the appellant strenuously contended before us that it cannot be raised in view of the fact that they have not even contended before the Tribunal that there was a contributory negligence of the scooterist. He also contended that even if we peruse the written statement Exh. 11, there is not a whisper that the scooterist has contributed in the cause of the accident. Under the old system of pleadings, contributory negligence could be raised under general issue, but in modern law, it must be specifically pleaded. He also contended that even if we peruse the written statement Exh. 11, there is not a whisper that the scooterist has contributed in the cause of the accident. Under the old system of pleadings, contributory negligence could be raised under general issue, but in modern law, it must be specifically pleaded. However, there is an exception to that and that is, whereas in any action and a counter-claim for damages resulting from a collision when each alleges exclusive negligence of the other, express plea of contributory negligence is not necessary. But these are cases where the principle of res ipsa loquitur meaning thereby that facts speak for themselves comes in play. The cases which can be said to be covered by such exceptions are cases where two or more vehicles are involved in accident and the situation of collision makes it evident wherefrom the Court can decide as to which of the vehicle was responsible for the cause of accident and if so, to what extent. In the present case, it is very difficult to assume contributory negligence in absence of contention of negligence of the other side for the simple reason that the scooter does not appear to have been collided with the S. T. bus. Another aspect in this case, in our opinion, is that both the vehicles were moving in the same direction. It is also clear that the scooterist was on his correct-left side of the road and the S. T. bus was on the right side of the scooter. Only damage to the scooter is that the glass of the front light is broken. This could be on account of the fall of the scooter and that probability cannot be ruled out as there is nothing on record that front portion of the scooter had at all any impact with. anything. If the scooter is not damaged, and there is no scratch on the bus itself, then in our opinion, it is very difficult to hold that the scooterist has contributed to any extent to cause the accident. The bus driver was negligent as is held proved by the learned tribunal and that fact is not under challenge before us. It is, therefore, not open for us to inquire or investigate into the cause of negligence. Thus, in the present case, it is very difficult to consider the argument of Mr. The bus driver was negligent as is held proved by the learned tribunal and that fact is not under challenge before us. It is, therefore, not open for us to inquire or investigate into the cause of negligence. Thus, in the present case, it is very difficult to consider the argument of Mr. Pandya, learned Advocate for the respondents that the scooterist also contributed to the cause of the accident. ( 5 ) IT is pertinent to note that the contention as to contributory negligence is raised for the first time in this appeal. Assuming that such a contention was raised before the Tribunal, then also in absence of any specific finding by the trial Court, it amounts to or is to be held negatived by the Tribunal. It was contended before the learned Tribunal that the driver of the bus was wholly responsible for the fatal accident and in answer to the same, the learned Tribunal has observed that "the opponents have miserably failed to prove that the accident occurred due to sole negligence of applicant No. 1 and on the analysis of the evidence, i find that it is proved beyond reasonable doubt that this accident was caused solely due to negligence of the bus driver". Our emphasis on the words "solely due to negligence of the bus driver" is to show that assuming that a contention was raised before the learned Tribunal about contributory negligence, it is answered in negative. It means that the scooterist, i. e; applicant No. 1 has not at all contributed anything to the cause of accident and the bus driver is solely negligent and because of his sole negligence, the accident took place. This finding of the learned Tribunal is not challenged either by way of cross-objections or by cross-appeal, This finding now cannot be challenged under the provisions of sub-rule (1) of Rule 22 of Order 41 of the Civil Procedure Code. It is not open to the respondents to challenge this finding to support the judgment of the trial Court. ( 6 ) MR. Pandya contended before us that if this Court is modifying the decree by enhancing the amount of compensation, then, respondent can raise the contention of contributory negligence and claim the deduction to the extent of contribution to confirm the award. ( 6 ) MR. Pandya contended before us that if this Court is modifying the decree by enhancing the amount of compensation, then, respondent can raise the contention of contributory negligence and claim the deduction to the extent of contribution to confirm the award. As discussed earlier, as per his own arguments, the question of contributory negligence is governed under the general issue of negligence. Therefore, once issue of negligence is decided, issue of contributory negligence is equally decided. Thus if negligence includes contributory negligence, and if negligence is decided against the respondent, issue of contributory negligence also stands decided against the respondents. Therefore, in absence of cross-objections or crossappeal, it is not open to the respondents to challenge the issue of negligence much less the issue of contributory negligence by raising it afresh in the course of hearing of the appeal. ( 7 ) IN view of these facts, it is necessary to understand what the provisions of Order 41, Rule 22 of the Civil Procedure Code provide for. It is true that under provisions of Order 41, Rule 22 without filing cross-objections or cross-appeal, respondent may support the decree on the finding decided against him in respect of any issue which ought to have been decided in his favour. This provision can be explained like this. When there are more than one defences and one of them is accepted and the others are denied and the suit is dismissed on acceptance of one of those defences, in an appeal against such a decree of dismissal of the suit or passing a partial decree, respondent may support the decree on the defence not only accepted by the trial Court but also on the defences not accepted by the trial Court. Thus, suppose in a suit by A against B, B raises two defences, one is decided in favour of B and another is decided against B. In view of the acceptance of the defence of B, the suit filed by A is dismissed. In an appeal, by A against that decree, B may not only support the decree on the ground on which the suit is dismissed but also on the ground that the defence which is denied by the trial Court has been improperly denied. In an appeal, by A against that decree, B may not only support the decree on the ground on which the suit is dismissed but also on the ground that the defence which is denied by the trial Court has been improperly denied. In the instant case, the Tribunal has passed a decree accepting the negligence of the respondent which issue of negligence ought to have been challenged by the respondent either by way of cross-objections or cross-appeal. In absence of cross-objections or cross-appeal by the respondent, it is not open to the respondent to challenge or raise the issue of contributory negligence, if it is his argument that the same is covered under general issue of negligence. Thus also, we do not find any substance in the say of Mr. Pandya. Thus, in our opinion, it is not open for the learned Advocate for the respondents to raise this contention Of contributory negligence in this appeal. ( 8 ) WE are of the opinion, that if a party wants to raise a contention as to contributory negligence on assumption that the issue of contributory negligence is covered under the general issue of negligence, then also it is required to be specifically argued before the trial Court and in absence of any finding given by the trial Court, it can be assumed that the same is argued and is decided against them. Thus, the issue is also held decided against the party who has raised the same. We are of the opinion that the issue of contributory negligence in cases where the principle of res ipsa loquitur is not attracted or by any stretch of imagination is not made applicable, then in absence of specific plea of contributory negligence, it will be difficult for any Court to decide such an issue simply by assuming that the same is covered under the general issue of negligence. In absence of specific plea of contributory negligence, the claimants are deprived of an opportunity to join the owner and or the Insurance Company, if the vehicle is insured. If such an issue is raised, then the party concerned will be on guard to lead necessary evidence either to show no contribution on their part or to reduce the liability if arises any. Burden to prove contributory negligence is on the party who alleges the same. If such an issue is raised, then the party concerned will be on guard to lead necessary evidence either to show no contribution on their part or to reduce the liability if arises any. Burden to prove contributory negligence is on the party who alleges the same. In the instant case, the burden to prove contributory negligence was therefore, on the respondents. As the present case does not attract principle of res ipsa loquitur it was necessary for respondents to lead necessary evidence to establish the extent of negligence of the scooterist. In the instant case, the evidence appears to be contrary. The scooterist comes with a case before the Tribunal that when he was going towards Raipur gate, S. T. bus came from behind, knocked the head of the pillion rider, the victim in this case and they fell down with the scooter. The S. T. bus drivers case is that he does not know anything about the accident, but a crowd of people came from the behind right side, shouted and asked him to stop. When he stopped the bus and came out, he found persons gathered near conductors gate of the bus. He found a scooter lying there, but did not see anybody injured. Thus, when it is the case of the driver that nothing has happened on his part and pleads total ignorance about the accident, it is not possible to accept or infer that he has also raised or intended to contend contributory negligence on the part of the scooterist. 12. A. When two vehicles are involved in an accident, both are liable jointly and severally for compensation. Claimant has a right to claim against either or both. If claim is made against one of them and ultimately its liability comes to be limited because of contribution of other, the claimant will suffer for not having joined the other vehicle. If contributory negligence was pleaded initially, claimant cannot complain of prejudice if he does not join that vehicle owner as party. Contributory negligence it not pleaded but if raised, the same can be remedied at trial stage. However, in appeal that opportunity if to be availed off, it may not only causause great inconvenience, but may be such right be lost. Contributory negligence it not pleaded but if raised, the same can be remedied at trial stage. However, in appeal that opportunity if to be availed off, it may not only causause great inconvenience, but may be such right be lost. The owner of the vehicle against whom the claim is preferred may also move the Court to join that owner of other vehicle and its Insurance company as a party to the proceedings. So also, concerned Insurance company may also be joined. In absence of any plea as to contribution to the cause of accident by the other vehicle, the claimant need not presume negligence on the part of the other vehicle and join it as a party to the proceedings. Thus, if a contention of contributory negligence is raised, the claimant will have an opportunity to join the owner of the other vehicle as party in the proceedings and if the vehicle is insured, the Insurance company may be joined as party or a notice by the Court may be issued under the provisions of the Motor Vehicles Act, 1939. If the contention as to contributory negligence is raised in the appeal, for the first time, in the course of arguments, under the circumstances, it cannot be said that no prejudice will be caused to the claimant. Prejudice may be caused for the reason that if the claim is required to be enhanced and if the Court permits the owner of the vehicle to oppose that claim by raising a plea of contributory negligence and if such plea is upheld, then, on the one hand, the appellate Court will be raising the quantum but will slice down the amount equal to the contribution and may bring down the compensation amount in conformity with the award passed by the tribunal. This will so happen in absence of cross-appeal or cross-objections filed by the owner of the other vehicle. This will so happen under the provisions of Order 41 Rule 22 of Civil Procedure Code. This will so happen in absence of cross-appeal or cross-objections filed by the owner of the other vehicle. This will so happen under the provisions of Order 41 Rule 22 of Civil Procedure Code. If the plea would have been raised initially and the owner and the Insurance Company of the other vehicle involved in the accident are party to the proceedings, and if owners of both the vehicles have not preferred any cross-objections or cross-appeals, and if the trial Court has not held the owner of the other vehicle negligent to any extent and in the appeal if the plea of contributory negligence is accepted, then the appellate Court can take recourse to the provisions of Order 41, Rule 33 of the Civil Procedure Code and pass a decree against the owner of the other vehicle against whom initially no decree or award was passed. In absence of plea of contributory negligence, owner and insurer of other vehicle will not be on record and no decree even in a fit case can be passed under Order 41 Rule 33 of the Civil Procedure Code. Thus, the prejudice may be caused to the claimant. In view of this fact situation, if the plea of contributory negligence is allowed to be raised and accepted then though the claim of the claimant if required to be enhanced in appeal, the same shall remain confined to the extent of award only and though, claimant is entitled to the amount higher than the awarded one, he will be without remedy to recover the same from the owner of the other vehicle against whom contribution is alleged for the accident. In absence of owner of other vehicle Order 41 rule 33 cannot be attracted. Thus, it cannot be said that by raising the plea, the claimant will not be prejudiced in any manner. However, 4 depends on the facts of each case. Thus, we are of the opinion that where the principle of res ipsa loquitur to hold both the vehicles guilty for accident, could be attracted, then, from the evidence on record, contributory negligence can be decided without a specific plea. However, 4 depends on the facts of each case. Thus, we are of the opinion that where the principle of res ipsa loquitur to hold both the vehicles guilty for accident, could be attracted, then, from the evidence on record, contributory negligence can be decided without a specific plea. But when principle of res ipsa loquitur could not be attracted despite the involvement of two vehicles in the accident, it will be advisable, if plea of contributory negligence is raised so as to avoid any prejudice that may be caused by raising or contending such a plea at a later stage. We are of the opinion, that if plea of contributory negligence is raised, it will be preferable, but if not raised at least it is required to be raised in the course of argument before the Tribunal and if not argued then, it will not be open for the other side to raise the same at the appellate stage. ( 9 ) MR. Bhatt, learned Advocate in answer to this has rightly contended before us that the appellants had been before the Tribunal with a positive case that the accident occurred due to sole negligence of the Bus Driver. Mr. Bhatt also contended before us, that if this Court does not believe that there was an accident, due to negligence of bus driver, there was no case for the applicants at all. This means that there was either negligence of the S. T. bus driver or no negligence. Here in the instant case, the issue of negligence decided by the Tribunal is not under challenge. What is argued before this Court is that the scooterist appellant No. 1 was also negligent for the cause of the accident. It is clear that the defence of contributory negligence admits prima facie negligence. It relies upon the failure of plaintiff to exercise reasonable care. It also suggests that it is not only the S. T. bus driver responsible for the cause of the accident, but it is also the scooterist who contributed or added or created the situation to cause the accident. Therefore, if one comes out with a defence of contributory negligence, in our opinion, there is an admission on his part that there was a negligence on his part, but he was not totally negligent or fully negligent, but the other side also contributed negligence to some extent. Therefore, if one comes out with a defence of contributory negligence, in our opinion, there is an admission on his part that there was a negligence on his part, but he was not totally negligent or fully negligent, but the other side also contributed negligence to some extent. In the instant case, when the defence taken by the S. T. bus driver is of total ignorance, it cannot be said that they had anything in their mind that the scooterist also contributed to the cause of accident, it can be said that according to them it was not an accident for which he can be held responsible in any manner. According to them, it is pure and simple accident, may be on their own fault. Thus, we do not find any substance in the contention raised by the learned Advocate Mr. Pandya. (Rest of the Judgment is not material for the Reports.) .